« How to Assert Constitutional Rights Politely: What Gates Should have Said | Main | Racial Profiling in Police Reports »

Jul 28, 2009

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

"In the Supreme Court case of Payton v. New York, 445 US 573 (1980), Justice Stevens was quite eloquent on the firm line that the constitution draws at the entrance to our homes: 1) even when there is probable cause that 2) we have committed a felony and are within a premises, 3) officers may not enter without a warrant. That’s the law, period."

Really? Period? You will find Payton versus New York here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=445&invol=573. It did not involve investigation of a report of a possible crime in progress. The Fourth Amendment rights of Professor Gates were not violated.

After posting the preceding, I tested the link, which did not seem to work. Maybe the period at the end of the sentence is affecting it. Here it is again:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=445&invol=573

If you read the other posts on this site, you will see that I've already gone over the facts of Payton in some detail and have already pointed out that the police may enter your home upon "exigent circumstances."

I have also pointed out that the specific fact pattern of Gates was not tested in Payton -- which is precisely why I urge Gates to sue. My argument is that if the court follows the principles of Payton (which are excellent principles, and re-affirm the continuing vitality of freedom in America), they must also rule that Crowley violated Gates' 4th amendment rights.

Now let's discuss "exigent circumstances." The Court explicitly stated in Payton that it would not enter into a discussion of exigent circumstances. But recall that these were the facts of Payton and its companion case Riddick: known armed murderers were on the loose and the police knew their exact location. These were people who might kill again at any moment. But since the premises were under surveillance, the police had no reason not to get a warrant first. So you have to understand that the barrier to "exigent circumstances" is quite high, and was not close to being reached in the Gates case.

That's the amazing power of the 4th amendment, which is what I am trying to communicate. Even when the police have probable cause to suspect that a known murderer is within a premises, they must obtain a premises if they want to cross that threshold without the alleged murderer's consent!

Let me further correct you as to your assertion that Crowley was investigating a "burglary in progress." He was investigating nothing of the sort. That is a horribly prejudicial way to look at a call to police: a call to police does not create a crime, but rather a suspicion of a crime. The police must investigate further before they have the right to determine that a crime has even occurred.

Unfortunately, the same criminalizing terminology that you use is also commonly present in the mindset of the police themselves, who intrude into citizens' lives with unfair assumptions that a crime has occurred when they have no sufficient reason for thinking so (as in the Gates case).

Crowley was investigating a report that a person WITH SUITCASES had laboriously forced the front door of a house in broad daylight. I mean, I'm not saying that Crowley should have been Sherlock Holmes, but give me a break. Based on that 911 report, which was Crowley's professional duty, Crowley was investigating a routine occurrence which in all probability was a case of a homeowner returning from a long trip and unable to find his keys. That's not at all the same thing as a "burglary in progress."

When Crowley saw Gates and understood that Gates was energetically asserting the legality of his residence, the "exigency" of the circumstances dropped immediately to zero. The explanation for the forced door was now obvious, and if Crowley had any doubt whatsowever, the odds that Gates was going to escape from 3 patrol cars full of young policeman, carrying sacks of booty over his shoulder, was beneath minimal.

At this point, had Crowley explicitly asked Gates permission to enter the residence, it is clear that Gates would have said no. Instead, Crowley, relying on the dubiously constitutional but standard police practice of barging in before a person can say no, clearly violated Gates' 4th amendment rights.

There were no exigent circumstances for Crowley to enter the residence. He could have left his fellow patrol-cars at the residence to prevent Gates' "escape" and he could have run down to the Courthouse for a quick warrant.

Of course, as I have already pointed out, Crowley would not have received a warrant, because judges are usually smarter than policemen, which is precisely why we force policemen to get warrants from judges. The judge would have had a good laugh on Crowley ("You want to arrest Henry Louis Gates! Hah! Crowley, you're a genius!) and Crowley could have called the patrol-cars to get the hell out of there before the press arrived.

That's what should have happened.

John, I think I understand your point of view. You believe that people should be respectful to policemen, and you think policemen should not have a lot of silly rules preventing them from saving people's lives and property. I agree with you on all that.

The constitution is a royal pain in the butt for our police, no doubt about it. Lots of times, it's the criminals that benefit. But that's the price! That's what it costs to have freedom. You have to let people be jerks in their own homes, even if it means being a jerk to a well-meaning cop, because the only alternative is totalitarian disrespect for our individual freedom.

If you really are a patriotic American, John, as I suspect, then I call on you to accept the burden of the Bill of Rights -- even when it's an uncomfortable burden. None of us likes to see a murderer go free when evidence is suppressed as unconstitutional, but we know that's the price we pay for our own freedom. It's a small price for us to pay, considering that so many other Americans have already died for that freedom.

Don't patronize me, Mr. Jimenez. The Bill of Rights does not impose absurdities. Sgt. Crowley was responding to a report of a possible crime in progress. That's as exigent as exigent gets. When he got to the house, he discovered Professor Gates inside it. He did not know whether Professor Gates was a lawful occupant of the house. He also did not know whether Professor Gates was one of the two men who had been seen forcing entry. He also did not know whether the two men who had been seen were persons other than Professor Gates and, unknown to Gates, were still inside the house, unlawfully. Accordingly, reasonably, he asked Professor Gates to come outside. Although Professor Gates was not entirely cooperative, he did eventually comply with Sgt. Crowley's request for ID. This required Gates to go to another part of the house; and Crowley, unaware who else or what might be in the house, entered the house to watch Gates as he went to get the ID. This has nothing at all to do with Payton versus New York; if Professor Gates were to sue Sgt. Crowley on the ground of violation of his rights under the Fourth Amendment, he would lose on the pleadings. Nobody in the Cambridge Police Department, or the police officers' union, or the office of the Massachusetts Attorney General has suggested anything to the contrary. To say it again -- your analysis suggests that the Bill of Rights requires us to live by absurdities, as a small price for freedom. It is ridiculous.

John, I'm not saying that it was not reasonable for Crowley to ask Gates to exit the house, and I'm not saying that it would not have been reasonable for Crowley to request access to the home. What I am saying is that Gates was within his rights to reasonably or unreasonably refuse access to Crowley. There is a magic documentary barrier erected at our front doors by the 4th amendment, which cannot be crossed without a warrant, though I see that you find it impossible to believe.

OK, let me try again. Please have a look at MINNESOTA v. OLSON, 495 U.S. 91 (1990). In that case we not only apply the Payton principles, but we get a precise look at what constitutes "exigent circumstances." The main argument that you are making is that Crowley reasonably perceived exigent circumstances to exist. I disagree, and I say that Olson backs me up. In Olson, we have a participant in a robbery-murder holed up with a couple of girl-friends. The police know he is there. Is this "exigent circumstances"? The court very clearly affirms the state court of appeals decision that when flight is impossible -- because officers surround the house -- the rule barring entry of the home without a warrant is in effect.

You actually support my argument with your repeated statement that the police "did not know" whether Gates was a lawful resident. That's enough of a doubt, when added to Gates' assertion of lawful residence, to bar the policeman from further entry without a warrant. I'm not sure if you appreciate that this was EXACTLY the rule applied in Olson (based on Payton), even in a case where we were dealing with known violent criminals.

Let me give you a different hypothetical. Crowley comes to the house and finds a window broken in back. He then hears a teen-ager cry out, "It's the cops!" and he takes off running. Crowley can see someone else inside the house, and that person runs for the front door. May Crowley enter the house to pursue the individual despite the lack of a warrant? Of course he can. As you point out, the Constitution does not require absurdities. Here, however, there is no reasonable doubt but that a crime is in progress. In Gates' case, there was more than a reasonable doubt, there was a very good likelihood that Gates was in fact the lawful resident. The police know this, John, people break into their own places all the time, every day.

Another clear example of "exigent circumstances" is "hot pursuit" -- the police are chasing a suspect who runs into a premises to escape. The police may enter without a warrant. Another exception is when there is evidence that someone is in imminent danger of harm, as evidenced by cries of pain or alarm. Please, note -- they MUST actually be crying out, it's not enough for potential victims to be in the same residence as a known violent felon.

All of these things that you term absurdities are the inevitable cost of maintaining freedom.

Although I understand it is hard to resist online, please try to refrain from abusive personal comments, that's one of the main things that went wrong in the Gates' case.

I will grant you this -- the law of the land is ultimately whatever the Supreme Court says it is, and the Court today is much more conservative than it was in the Payton days. Antonin Scalia would definitely find some way of agreeing with you and Clarence Thomas would mutely agree, the way he always does.

I think our country needs a procedure similar to the Miranda warning whenever the police request entry to our homes. Absent a warrant, such a warning should alert us that we may refuse further entry unless the officer perceives articulable exigent circumstances.

I understand that we need police officers to help us manage a highly imperfect society. I also understand that police officers and their family members and supporters are very loyal people. Perhaps that explains your strong feelings on the matter.

Mr. Jimenez, before I say anything else -- I apologize for my abusive comments. Allow me to say that I had regretted them before you posted your remark about them.

Mr. Jimenez --

At 4:04 PM, July 29, you wrote this:

"The Court explicitly stated in Payton that it would not enter into a discussion of exigent circumstances. But recall that these were the facts of Payton and its companion case Riddick: known armed murderers were on the loose and the police knew their exact location. These were people who might kill again at any moment. But since the premises were under surveillance, the police had no reason not to get a warrant first. So you have to understand that the barrier to 'exigent circumstances' is quite high, and was not close to being reached in the Gates case."

For the record: (1) Riddick was arrested for armed robbery, not murder. (2) I don't think the court indicated that the Payton or Riddick premises had been under surveillance in the periods prior to the warrantless arrests.

You write: "These were people who might kill again at any moment." What is your basis for that statement? It seems to be an attempt to jump over the very issue -- exigency -- that is at the heart of the case. If the police were of the view that Payton might "kill again at any moment," I should hope they would have gone to his place right away, rather than wait until the morning after they'd assembled the evidence against him (as the court indicates they did). Evidently, there was no concern on the part of the police in the Payton or Riddick cases that the suspects might imminently flee or commit additional crimes.

Why do I say that? Because that's the very reasoning the court applies in Minnesota versus Olson, the case you cited in your post of 6:55 PM (July 29). From that decision's final paragraph:

"[A]lthough a grave crime was involved, respondent 'was known not to be the murderer but thought to be the driver of the getaway car,' ... and ... the police had already recovered the murder weapon.... 'The police knew that [the women in whose residence the suspect was located] were with the suspect in the upstairs duplex with no suggestion of danger to them. Three or four Minneapolis police squads surrounded the house. The time was 3 p.m., Sunday. ... It was evident the suspect was going nowhere. If he came out of the house he would have been promptly apprehended.' Ibid. We do not disturb the state court's judgment that these facts do not add up to exigent circumstances."

The court was right. The situation was, so to say, under control. Not only was there no risk of flight, as you have mentioned; there was no reason to think another crime was about to be committed.

That was not some sort of bizarre reasoning, to be understood only by Bill of Rights cultists, familiar with the price of freedom. The circumstances simply were not exigent -- i.e., "urgent," "pressing," "requiring immediate action or remedy" (to borrow from a dictionary). The police had time to procure a warrant. That has nothing to do with the Gates case.

At 4:04, you wrote:

"Let me further correct you as to your assertion that Crowley was investigating a 'burglary in progress.' He was investigating nothing of the sort. That is a horribly prejudicial way to look at a call to police: a call to police does not create a crime, but rather a suspicion of a crime. The police must investigate further before they have the right to determine that a crime has even occurred."

I object to that. Kindly reread my post of 2:30 PM (July 29). I indicated that Sgt. Crowley was investigating a "possible crime in progress."

(To be continued)

CONTINUED:

At 6:55 (July 29), Mr. Jimenez, you wrote:

"There is a magic documentary barrier erected at our front doors by the 4th amendment, which cannot be crossed without a warrant, though I see that you find it impossible to believe."

I find it impossible to believe because it's not true. Is that what Payton says? It certainly is not. Once again you are attempting to jump over the very issue we're discussing: exigency -- which eliminates the need to procure a warrant.

At 4:04, you wrote:

"That's the amazing power of the 4th amendment, which is what I am trying to communicate. Even when the police have probable cause to suspect that a known murderer is within a premises, they must obtain a premises if they want to cross that threshold without the alleged murderer's consent!"

No -- that's not the amazing power of the Fourth Amendment. The question is exigency -- not whether a known murderer or any other type of criminal is within the premises. Yes -- in Payton and Olson, there were suspected felons within the premises; but there was no exigency.

In the Gates case, we're not talking about a known murderer. There was a report of a possible crime in progress. The officer had no idea what was going on in that house. He did not know whether Gates was a lawful occupant. He did not know whether Gates was one of the two men who had been seen forcing entry to the house. He did not know whether neither of those two men was Gates and that they were, unknown to Gates, inside the house. You speak as if everything that was ultimately known had been obvious virtually from the start. That is why, for instance, you talk about the silly possibility of Gates's slipping past the policemen with sacks of booty. That house could have held an intruder ready to put a bullet through Gates's head.

(To be continued)

CONTINUED:

Mr. Jimenez --

Let me correct one thing I said, in my post of 5:52, July 29. I said that Sgt. Crowley entered the house to be able to see Professor Gates as he (Gates) moved away from the front-door area to get ID. I vaguely recall that I heard Crowley say something like that in an interview -- but I've just taken a look at the police report, where that doesn't appear. In the report, Sgt. Crowley simply says that he entered the house as Gates picked up a cordless phone and called someone. That doesn't mean Crowley didn't enter the house to keep a clear view of possible dangers; it simply means that he didn't mention that in the report.

At 4:04 (July 29), you wrote:

"Crowley was investigating a report that a person WITH SUITCASES had laboriously forced the front door of a house in broad daylight. I mean, I'm not saying that Crowley should have been Sherlock Holmes, but give me a break. Based on that 911 report, which was Crowley's professional duty, Crowley was investigating a routine occurrence which in all probability was a case of a homeowner returning from a long trip and unable to find his keys. That's not at all the same thing as a 'burglary in progress.'

"When Crowley saw Gates and understood that Gates was energetically asserting the legality of his residence, the 'exigency' of the circumstances dropped immediately to zero. The explanation for the forced door was now obvious, and if Crowley had any doubt whatsowever, the odds that Gates was going to escape from 3 patrol cars full of young policeman, carrying sacks of booty over his shoulder, was beneath minimal.

"At this point, had Crowley explicitly asked Gates permission to enter the residence, it is clear that Gates would have said no. Instead, Crowley, relying on the dubiously constitutional but standard police practice of barging in before a person can say no, clearly violated Gates' 4th amendment rights.

"There were no exigent circumstances for Crowley to enter the residence. He could have left his fellow patrol-cars at the residence to prevent Gates' "escape" and he could have run down to the Courthouse for a quick warrant.

"Of course, as I have already pointed out, Crowley would not have received a warrant, because judges are usually smarter than policemen, which is precisely why we force policemen to get warrants from judges. The judge would have had a good laugh on Crowley ("You want to arrest Henry Louis Gates! Hah! Crowley, you're a genius!) and Crowley could have called the patrol-cars to get the hell out of there before the press arrived.

"That's what should have happened."

(To be continued)


CONTINUED:

Hmm -- because of the hour and because of the fact that I have duties I should attend to, I'll spare you some minor -- and, really, immaterial -- points that I was going to make. I'll get to your main point:

In your original entry, you wrote:

"Crowley failed to heed Gates constitutional rights at least twice — first, when he asked Gates to leave his home, and second, when he entered Gates home without requesting permission — and Gates would be doing us all a favor if he made that clear in court."

Now that I think about it -- I'm not sure our disagreement is so deep. As to the second point, I think I've stated from the beginning that Sgt. Crowley's entry into the house was justified -- as I had understood it -- by his need to maintain a clear view, for safety's sake. I still think that, if the situation played out so that Gates, in moving to the telephone or whatever, put Crowley in a dangerous position, Crowley was justified in stepping into the house if his thought was that that was necessary, for his protection. I don't know whether that was, in fact, why Crowley stepped into the house. He might have had some other justification, which has not occurred to me. I'm not sure, as you seem to be, that he "barged in."

As to your first point: Before reflecting on what you've written, I would never have agreed with that. I would have thought it indisputably lawful for the policeman to ask the occupant to come out of the house. Now that I've read what you've written, I wonder whether a court would say the policeman is required to give a Miranda-type advisement, such as "Will you come out of the house? You're not required to."

One thing I've noticed about the police report is that Sgt. Crowley asked Professor Gates to come out of the house before he (Crowley) identified himself as a Cambridge police officer and said that he was investigating a report of a break-in in progress. That struck me early. If it's an accurate recollection on Sgt. Crowley's part, it suggests to me that Crowley had a concern for his physical safety and that, for some reason or another -- having to do with the nature of the 911 report, the view through the door, or whatever -- he was hoping to get Gates out of the house, onto the porch, before he even told Gates who he was or what he was there for. I'm not sure the Supreme Court would say that a policeman investigating a report of a possible crime in progress is required, up front, to "put all his cards on the table" -- by identifying himself, giving a Miranda-type advisement etc. The policeman doesn't know whom or what he's dealing with, and he might be justified in not saying everything to an unknown person he's encountered.

That, as I've vaguely sensed from the beginning of our discussion, is where you and I disagree. You seem to think that cases such as Payton and Olson involve situations much more dangerous than the Gates case. I think the opposite. Yes -- Payton and Olson involve known murderers, armed robbers, getaway drivers, or whatever; but that is precisely why the situations in those cases were less dangerous than what Sgt. Crowley faced. Things were known. The police knew whom they were dealing with and that the persons were surrounded or whatever. An officer who is responding, as Crowley was, to a report of a possible crime in progress is facing the unknown. In reading your account and assessment of the Crowley-Gates encounter, I was struck that, in essence, you seem to think that many things that were known in the end were obvious early on. I will be blunt: I can't help thinking that, if harm had come to Sgt. Crowley or to Professor Gates or to someone else because Crowley had proceeded on a false conclusion that had struck him as obvious, you would be among those quick to point out that that's just how stupid cops are.

A final remark, Mr. Jimenez:

As I examine my initial statement to you, I'm not sure it quite communicated -- even to me -- what I was trying to say. I emphasized that Sgt. Crowley was investigating a possible crime in progress; but by saying the case therefore had nothing to do with Payton versus New York, I might have given the impression that I was saying Sgt. Crowley was entitled to enter the house at any point -- from the moment he arrived on scene. As I've already pointed out, that is not, in fact, what I was saying. When I proceeded to detail the events, I stated (my understanding) that Sgt. Crowley stepped inside the house at a point at which it became necessary for him to do so to maintain his view -- for safety's sake (and not just for his own safety, I'll add). In other words, I was saying that the warrantless entry was justified -- by exigency. The facts, were they to be examined, might not demonstrate that that's why Sgt. Crowley entered the house; but that was the basis on which I argued a warrant was not necessary. To say it again: It is not clear to me that Sgt. Crowley "barged in."

As for the other concern -- Sgt. Crowley's asking Professor Gates to come out of the house. I think I might have been unfair to myself in saying that, before I read what you've written here, I regarded that as "indisputably" lawful. I think that, as soon as I became aware of that request of Sgt. Crowley's, I recognized its lawfulness as a close question -- or, at least, something to be examined. Your mention of the possibility of Miranda-type advice to be delivered with a request for entry is what raised in my mind the question whether such advice should be delivered with a request to come outside. As I've already said, a policeman might have good reason -- say, a safety concern -- for not giving such advice, for wanting to say nothing more than, "Will you come outside?" In fact, as I've already said, Sgt. Crowley seems to have had such a concern.

Follow-up:

I don't think it's in the police report; but I think I've seen Sgt. Crowley say that, after Gates said he would not come out of the house, Crowley asked him whether anyone else was in the house. Crowley had in mind the eyewitness's 911 information that two men had forced entry. Crowley was unsure whether Gates was one of the two men and also whether there were two men in the house without Gates's knowledge. I think Gates said something like, "That's none of your business." I'm not sure Gates was within his rights to refuse to answer that question.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been posted. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Your Information

(Name is required. Email address will not be displayed with the comment.)